In a move which could kill off the second hand software market, a Federal Appeals court has ruled that publishers can stop buyers from reselling old software.

Game publishers in particular have been trying to kill off the reselling used games because they do not get cash from them. EA has instituted a charge for gamers that buy their copies used and wish to play online and other outfits are set to copy them.

But according to the Dallas News the San Francisco-based 9th U.S. Circuit Court of Appeals has ruled in the case of Vernor vs. Autodesk that software publishers have the authority to prohibit the resale of their software to another user. The ruling contradicts previous decisions have claimed that software could be resold under the “first sale doctrine.”

The ruling is related to computer software which has a license agreement specifically built in and spelled out in no uncertain terms. It could be extended to include all electronic equipment that is sold second hand.

However the case is not really about games. It was bought when a seller named Timothy Vernor tried to sell copies of Autodesk’s AutoCAD on eBay. Autodesk claimed that the secondhand sale violated the software license and demanded that eBay remove the items. EBay complied, but also filed a brief on behalf of Vernor, claiming that the sale did not violate U.S. copyright laws, and that the sale of used items is vital to the economy.

Analyst Nielsen said that the days of Apple and Rim's Blackberry ruling the smart-phone market have gone and .omentum has shifted toward smart phones that run on Google's Android. The research outfit said Android phones now have control of nearly a third of the smart-phone sales in August.

Job's Mob's iPhone and BlackBerry had to settle for a statistical dead heat for second at about 25 percent, Nielsen said. The figures include a month of availability for Apple's highly publicised, and broken, iPhone 4.

In January, when new Android phones captured only 14 percent of the market, BlackBerrys had 34 percent) and iPhones had 32 percent. In June, RIM had 35 percent of new phone sales. But in August, Nielsen said that Android handsets had outsold iPhones among new U.S. smart-phone buyers in the second quarter.

BlackBerry is still the market leader with 31 percent of the market in August, with the iPhone second at 28 percent. But with the momentum building, it is starting to look like Android will be the major player by next year.

Android is winning because the software is free to any company that wants to use it in their phones. It is not locked in and people can do what they like with it.